With the Supreme Court's help, Republicans' plan to resurrect "zombie laws"
Anyone with a passing knowledge of the history of reproductive rights in America has heard of the antediluvian Comstock Act but I doubt most of them ever thought it would actually be back in use in the 21st century. The notorious "anti-vice" law from 1873 banned the shipment of "lewd" written materials, contraceptives and any “instrument, substance, drug, medicine, or thing” for the purpose of abortion, and had not been in force for many decades since the passage of various laws and the recognition of a constitutional right to abortion in 1973's Roe v. Wade Supreme Court decision. Nonetheless, it remained on the books. And leave it to the radicals putting together Project 2025 to exhume it the minute Samuel Alito and company give them the green light.
My Salon colleague Amanda Marcotte wrote about the Comstock Act in depth a few months ago in the wake of the 5th Circuit Court of Appeals Mifepristone ruling (access to which was thankfully affirmed (for now) by the Supreme Court this month.) The original decision relied heavily on the Comstock Act to justify the decision to ban the drug, an issue which was left unresolved by the Supreme Court when it threw out the lawsuit on the basis of standing rather than the merits. So the Comstock Act remains on the books and is now theoretically constitutional since the reversal of Roe v Wade, at least when it comes to contraception and abortion. Other aspects of the law regarding obscenity are still unenforceable as they remain protected under other precedents.
The Comstock Act is what's known as a "zombie law" which is a law that has been neutered by subsequent High Court decisions that have found a constitutional prohibition against enforcing them but remain on the books sometimes for centuries lurking around like the undead (hence the name) waiting for a chance to be reanimated by the Supreme Court overturning one of its own decisions. There are a lot of them as we just saw in several states that had draconian 19th-century laws go into effect when the Court handed down its Dobbs decision.
In Arizona, after Roe was overturned, the conservative state Supreme Court revived a near-total ban on abortion, invoking an 1864 law that only allows abortion to save the mother's life and gave prison time to doctors who perform them. The state legislature went through tremendous gyrations to finally repeal that 1864 law but the status of the state's abortion laws remains in limbo and doctors and patients remain confused and anxious about the law's requirements. A similar story has played out in all the states that had these zombie laws on the books.
The Comstock Act is a federal law, however, and it is still in effect and is ripe for the picking by anti-abortion zealots and others who want to further restrict reproductive freedoms, including contraception. From the moment the Dobbs decision came down legal experts and activists recognized the danger it posed with this radical right-wing judiciary and they immediately started to work on repealing it. At the time a number of abortion rights groups asked them to stand down because of cases already in the pipeline that would have been affected. As Notus reported:
“There’s a lot of litigation playing out that’s specific to this that many of the reproductive rights groups are in the middle of. They’re actually wanting to, they’re not wanting to see [the Comstock Act] change in the middle of that litigation. So that was at the request of Planned Parenthood and other reproductive freedom groups that have been fighting this for a long time,” Democratic Representative Pat Ryan said.
That came as something of a surprise but the Democrats in Congress complied with the request. However, with the Mifepristone case decided they have decided to make the move.
According to the Washington Post, Democrats are now introducing legislation to repeal the abortion provisions of the Act with the backing of those major abortion rights groups. (They will apparently leave in some of the obscenity laws on which bans on child pornography are based.) The Senate bill has 20 co-sponsors, including Sens. Tina Smith, D-Minn., Elizabeth Warren, D-Ma., and Catherine Cortez Masto, D-Nev. And Reps. Becca Balint, D-Vt. and Cori Bush, D-Mo. introduced the legislation in the House. Although they haven't spoken out, the assumption is that the Democratic leadership is supportive.
The Post article suggests that there may be some reluctance by the White House but the reasons are unclear although other unnamed Democrats fear that it will somehow distract from other issues, which is typical but foolish. I hope that's not the case. The Comstock Act is a 19th-century monstrosity that should be repealed because it is grotesque and we are watching it be used to roll back Americans' basic human rights.
Obviously, the very pious Christian Nationalist Speaker of the House Mike Johnson will not let this pass. The Comstock Act might have been written by him personally. (This is a man who participated in one of those bizarre purity balls with his daughter, after all. ) So there's no hope of passage this year. But this should be part of the debate going into the election and the Democrats must repeal it the minute they get the chance because we know the Republicans are planning to use it the minute they get theirs.
There are a lot of zombie laws on the books that are likely to be used by conservative judicial activists in the next few years now that they've secured the right-wing Supreme Court of their dreams. For instance, there are existing, unenforced laws against adultery, atheism and sodomy which could easily be reanimated under some of the right's current crusades. Discriminatory housing covenants and outdated draconian drug laws could rise from the dead as well.
They are setting up test cases all over the country with an eye toward overturning precedents to make that happen. Just this week Louisiana passed a new law requiring that all schools display the Ten Commandments in every classroom (using a large font!) They hope to get it to the Supreme Court which has shown every inclination to destroy the separation of church and state. Any zombies from the 1950s will immediately go back into effect if they uphold this law as constitutional.
Democrats in state legislatures and at the national level would be wise to survey all the laws and repeal these dead ones wherever they can as soon as possible. If they don't, there's every chance the right's various culture crusades will end up bringing them back to life.
